Miscarriage of Justice

1. Miscarriage of Justice Wrongful Convictions and Procedural Technicalities

2. Guiding Question • Which do you consider a greater miscarriage of justice, when an innocent person is wrongly convicted or when a guilty person is freed on the basis of a technicality?

3. What is a Miscarriage of Justice? • A miscarriage of justice is considered to have occurred when an innocent person is wrongly convicted of a criminal offence. • The Canadian justice system is not immune to miscarriages of justice. In recent years several prominent cases regarding wrongfully convicted individuals have surfaced. • A miscarriage of justice also occurs when guilty people are released because of a rights violation or procedural technicality. • Either way, the credibility of the criminal justice system is weakened

4. Wrongful Convictions • Wrongful convictions can happen as a result of mistakes in eye witness identification, perjury, incompetent legal defence, false confessions, over eager prosecutors and investigators, or errors made by forensic experts. • The CSI Effect • Garry Sheck the innocence project • False Confessions

5. Wrongful Convictions – Donald Marshall Jr. • The first case to receive public attention; • A Mi’kmaq Indian, he was wrongfully convicted of stabbing a woman in 1971; • Served 11 years of a life sentence in prison but always maintained his innocence. • Was released when further investigation revealed that Roy Ebsary had actually committed the murder (Ebsary had bragged about being good with knives); • Acquitted in 1983; • Though the Appeal Court declared him not guilty, Marshall was told he had contributed to his own conviction and that any miscarriage of justice was more apparent than real. • In 1984 was awarded compensation of $270000, $100000 of which went to legal expenses. • In 1990, a Royal Commission was conducted to see what had gone wrong with the Marshall case, and it determined it was procedural problems: • False testimonies; • Improper investigations; • Racism • After the inquiry, he was awarded an additional $200000 and a monthly annuity to be paid out for the rest of his life.

6. Wrongful Convictions – Guy Paul Morin • Was charged with the murder of his 9-year-old neighbour, Christine Jessop; • Was sentenced to life imprisonment in 1992; • DNA evidence exonerated him in 1995; • An inquiry came to the conclusion that flawed investigations, errors made by the Centre of Forensic Sciences, and false testimony provided by jailhouse informants, all contributed to his wrongful conviction; • He was awarded $1.25 million for his suffering.

7. Wrongful Convictions – David Milgaard • Was arrested and charged with the rape and stabbing death of Gail Miller in 1969; • Was sentenced to life in prison in 1970; • He maintained his innocence, and appealed his conviction, though unsuccessfully; • There was a reference (a procedure by which the government of Canada refers an important legal or factual question to the Supreme Court of Canada for the court to hear and consider) made regarding his trial and the alleged miscarriage of justice; • Despite these processes, the courts maintained that there was no miscarriage of justice and that a fair trial had taken place.

8. He served 23 years in prison for her murder; • In 1997, new evidence in the form of a DNA profile cast doubt on the reliability of his conviction – another man, Larry Fisher, matched a DNA profile from the blood found on the victim’s underwear; • In 2000, Fisher was found guilty of the murder and sentence to life imprisonment; • There was an inquiry into Milgaard’s wrongful conviction – how could an innocent man be incarcerated for 23 years of his life? • In 1999, Milgaard received $10 million – the largest ever awarded in Canadian history. • miscarriage of justice milgaard etc.

9. Wrongful Convictions – Thomas Sophonow • Was wrongfully convicted of the 1981 murder of 16 year old Barbara Stoppel; • Tried 3 times and spent 4 years in prison before the Manitoba Court of Appeal overturned his conviction; • In June 2000, DNA evidence cleared him of the murder; • After the inquiry, it was determined that the Crown had not disclosed significant and important information to the defence, including mistaken identifications made by key eyewitnesses, which seriously affected the fairness of the trial. • He received compensation of $2.6 million.

10. Wrongful Convictions – Steven Truscott • In 1959, Truscott was sentenced to be hanged at age 14 for a schoolmate's murder, becoming Canada's youngest death-row inmate. • His death sentence was commuted to a life sentence, and in 1969 he was released on parole. • He always maintained his innocence. • Between June and July 2006, a review into his case was conducted. • During the three week review, some of the forensic and pathology experts cast doubt on coroner John Penistan's key forensic evidence used to convict Truscott. • Witness accounts not included in the original police case – a strange car seen near the woodlot where Harper was found, the night she was murdered – came to light.

11. Wrongful Convictions – Steven Truscott • Old testimony by key witnesses in the Crown's original case were refuted (a key witness actually testified that her original testimony was wrong). • On Aug. 28, 2007 — 48 years later — the Ontario Court of Appeal unanimously overturned Truscott's conviction and acquitted him, declaring the case "a miscarriage of justice" that "must be quashed." • The judges went on to say, however, that "the court is not satisfied that the appellant has been able to demonstrate his factual innocence." • In July 2008, the Ontario government announced it would pay Truscott $6.5 million in compensation for his ordeal.

12. Would you trust this man?

13. Dr. Charles Smith: Trusted Pathologist?

14. Dr. Charles Smith – Not a Mama’s Boy • He was born in a Toronto Salvation Army hospital where he was put up for adoption three months later. After years of looking for his biological mother, he called her on her 65th birthday. But she refused to take his call.

15. Dr. Charles Smith • Pathologist for Sick Kids Hospital responsible for sending many innocent parents to prison for killing their children • The coroner's review found that Smith made questionable conclusions of foul play in 20 of the cases — 13 of which had resulted in criminal convictions. After the review's findings were made public in April 2007, Ontario's government ordered a public inquiry into the doctor's practices.

16. Dr. Charles Smith’s Victims • “AN IMPECUNIOUS YOUNG MOTHER WITH LIMITED PARENTING AND COPING SKILLS,” “They say the truth will set you free,” • “DR. SMITH ENTIRELY DISCOUNTED THE THEORY THAT KENNETH, WHO HAD BEEN TREATED FOR A NUMBER OF SEIZURES DURING HIS LIFE, MAY HAVE DIED DURING A SEIZURE.”

17. Tammy Wynne • Ms. Wynne's dark journey began on Oct. 9, 1993, when she called 911 in a panic to report that she had emerged from the shower to find Kenneth – who had a history of epileptic seizures – tangled in his bedclothes, struggling for breath and calling, “mommy.”

18. Tammy Wynne • Proudly touted by his employers at Ontario's Office of the Chief Coroner as a world-class pediatric pathologist, Dr. Smith's view carried the day. Ms. Wynne was convicted of second-degree murder and sentenced to life in prison with no chance of parole for 10 years.

19. Tammy Wynne • Ms. Wynne gave birth to her second child, Keith, while on bail awaiting trial. She arrived in prison five months pregnant; her third son, Eric, was seized two days after he was born. Both boys were adopted by the same parents, whose identity remains a mystery to Ms. Wynne.She dreams that at the end of it all, she will see her two sons.“The last time I heard of them was 1998, when the adoption was finalized,” Ms. Wynne said. “I'm always thinking about them. I would like to see them again, but I don't want them to feel obligated. It's their choice.

20. Dr. Charles Smith’s Victims

21. William Mullins-Johnson • Convicted of first-degree murder in the murder of his four-year-old niece, Valin Johnson • Mullins-Johnson had babysat Valin and her 3-year-old brother on June 26, 1993. • When the girl's mother returned home, she did not check on her daughter. At 7 a.m. the next day she found Valin dead in bed.

22. William Mullins-Johnson • Then "consultation reports" were sought from Smith and four other specialists, based on tissue samples and other evidence from the autopsy. Smith was the only consultant to conclude Valin was sexually assaulted at the time of death. That contradicted the defence's point that Valin, who had a history of vomiting in bed, might have died of natural causes.

23. William Mullins-Johnson • On July 16, 2007 a report by three expert pathologists determined there was no evidence that the girl was sexually assaulted. • On October 15, 2007 he was acquitted by the Ontario Court of Appeals.

24. Discussion • Should the Canadian government be responsible for the failures of the criminal justice system? • Should the Canadian government be forced to pay wrongfully convicted individuals for the false testimony of expert witnesses like Dr. Smith? W5 Guilty Until Proven Innocent

25. How is Compensation for the Wrongfully Convicted Determined? • compensation for non-pecuniary losses (covering loss of liberty, the indignities of incarceration, loss of reputation, and loss or interruption of personal relationships) - limited to $100,000; • compensation for pecuniary losses (loss of earnings - both past and future, loss of property or other consequential losses); and • compensation for costs incurred in obtaining a pardon or a verdict of acquittal. • But how do you put a price on the years lost???

26. Other miscarriages of Justice • Can occur when a guilty person walks free based on procedural technicalities. • In R. v. Hebert [1990], the accused was arrested and charged with robbery. • After he consulted with a lawyer, he indicated that he did not wish to make a statement to the police. • He was placed in a cell with an undercover police officer and tricked into making statements that incriminated him in the robbery. • At trial, the courts ruled that his rights under sections 7 and 10b of the Charter had been violated, the statements he made were excluded as evidence, and he was acquitted. • The case went to the Supreme Court, where it was determined that to admit the statements as evidence would make the trial unfair.

27. In R. v. Manninen [1987], the accused was charged with robbing a convenience store and theft and possession of a stolen vehicle. • The store owner reported to the police that the individual who robbed him had a knife and wore a grey hoodie. • Two days later, two plainclothes police officers arrested Manninen at a store for theft, armed robbery, and possession of a stolen car. • They read him his rights twice, and Manninen said that he was not going to say anything until he consulted his lawyer.

28. Even though there was a phone nearby, at no point did the police make any effort to allow him to contact his lawyer. Instead, they proceeded to ask questions, and his statement became the basis of his conviction at trial. • Manninen appealed on the basis that the questions violated his rights to counsel under section 10(b) as they did not provide him with the opportunity to call a lawyer and due to the violation the evidence obtained in violating his right should be excluded under section 24(2). • The Court of Appeal agreed and overturned his conviction. • The case of went to the Supreme Court where the court ruled that Manninen was denied his right to counsel, and since the use of the evidence involved a serious offence and would make the trial unfair, the evidence should be excluded and a new trial should be ordered.

29. While allowing a guilty person to go free on a procedural technicality or a violation of rights is a horrible prospect to most Canadians, these laws serve a greater purpose i.e., to protect the rights of all citizens. • If we do not safeguard our rights against unreasonable search or arbitrary detentions or access to legal counsel, all of society suffers, as these rights are the cornerstone of our justice system. • To protect the innocent, we must also guarantee the rights of the guilty too.

30. Frontline - false confessions • Frontline - Death by fire - the Death Penalty and wrongful convictions • Tammy Wynne - wrongfully convicted • The Fifth Estate - A Death in the Family - William Mullins-Johnson • The Fifth Estate - the Wrong Man - Thomas Sophonow